Court Decides if Evidence was Improperly Obtained

A customer service agent for an airline at Los Angeles International Airport became suspicious of two cartons delivered to the terminal. The cartons had been left for shipment to New York’s Kennedy Airport, consigned to a certain individual, care of defendant. Acting under tariff regulations, the agent slit the larger of the two cartons and observed what, from his previous experience, he believed to be marijuana. A New York DWI Lawyer said the Los Angeles police were notified who, without a search warrant, inspected the contents and confirmed the agent’s discovery. One of the cartons was emptied of its contents, refilled with sand, and both cartons were sent on their way. At 11:30 P.M. that evening, one of the officers involved telephoned a detective of the New York City police who has been a member of its Narcotics Bureau for 12 years. According to the detective, the officer told him that the marijuana was on its way to Kennedy Airport, that they have already got some out and that the airline employee found it.

The following morning, the detective went to the Kennedy Airport with knowledge of the defendant’s name, the air flight number, arrival time, and air bill number. At 7:00 A.M., the two described cartons arrived. They were marked with the names of the recipient, care of defendant. A New York DWI Lawyer said the detective went close to the shelved cartons and detected a strong odor of marijuana. He did not open the cartons but kept them under surveillance.

At about 11:00 P.M that evening, defendant appeared at the airline terminal and approached the detective who was attired with the airline uniform. Upon stating that he wished to claim certain packages, the detective directed him to the freight agent. Defendant then identified himself and signed the air bill while the detective accompanied him. From a distance, defendant apparently picked out the appropriate packages. The detective, while assisting the defendant, then carried one of the cartons, containing the sand, to the parking lot when he was intercepted by a companion of the defendant who insisted upon carrying the carton the rest of the way to an automobile. The detective surrendered the carton and waited for both men to reach their car. He then arrested both men, seized the two cartons, and made further searches with the assistance of two Federal agents. A search of defendant produced a paper with the shipping details and a check made out to defendant and indorsed by him to the sender of the shipment, the consignor. The search of the car disclosed small quantities of marijuana.

The possession of small quantities or the marijuana possession, the subject of the second count of the indictment for drug possession in the second degree, is no longer relevant since both defendants and his companion, were acquitted on that charge.

The defendant moved to suppress the seizure of the marijuana found in the vehicle used but was denied.

Defendant was convicted of the drug crime of possession of a dangerous drug in the first degree arising from his receipt of 46 pounds of packaged marijuana at the Kennedy International Airport. His co-defendant was acquitted of all charges.

The Issues:

The primordial issue is whether or not the marijuana seized following defendant’s arrest should have been suppressed because some information leading to the arrest was improperly obtained by the California police officers in another prosecution. A Nassau County DWI Lawyer said another important issue is whether or not defendant’s marijuana possession is sufficient to infer his knowledgeable possession.

The Ruling:

Here, when the detective placed the cartons under surveillance and subsequently arrested defendant, he undoubtedly relied on all the information the police officer gave him. Nonetheless, he would have similarly responded if only the customer service agent’s information had been transmitted. The detective, in either event, would have intercepted the cartons at the airport the following morning. An outward inspection of the marijuana carton with its telltale odor associated, by experience, with marijuana would have prompted surveillance and justified the ensuing arrest. No arrest warrant was necessary since the customer service agent’s information and the odor of marijuana gave the detective probable cause to believe that a crime was being committed in his presence. The arrest was based on probable cause and the police were entitled to seize the contraband known to them to be such, and continuously within their observation.

As a rule, independent untainted evidence establishing probable cause for police conduct will sustain the arrest or seizure even if there has been antecedent illegal conduct by the police. Indeed, when, as in this case, the untainted information would have inevitably resulted in the New York surveillance, and then the arrest and seizure, the rule with its exception is more than satisfied.

New York police should not be handicapped by police illegality in another jurisdiction which is not necessarily responsible for the present prosecution, that is, is not an essential ingredient to the New York prosecution. Moreover, in the absence of collusion between the police of the two jurisdictions, the exclusion of the otherwise properly obtained New York evidence serves no legitimate purpose.

Moreover, res judicata, as distinguished from other procedural bars to the relitigation of crimes or particular issues, is not applicable to criminal prosecutions in quite the same way as that body of doctrine is applicable to civil cases. On any view, neither direct nor collateral estoppel is established by the records of the case. Identity of the prosecuting party is an indispensable precondition to the invocation of either kind of estoppel. There is equally absent an identity of issues, also required for estoppel. Indeed, the suppression court in New York assumed the illegality of the California search, but the question in this case turned on the effect which that illegality would have, if any, on the subsequent New York police conduct. That, of course, was never before the California court.

Furthermore, the drug crime of possession of a dangerous drug requires a physical or constructive possession with actual knowledge of the nature of the possessed substance. Knowledge, of course, may be shown circumstantially by conduct or directly by admission, or indirectly by contradictory statements from which guilt may be inferred. Generally, possession suffices to permit the inference that the possessor knows what he possesses, especially, but not exclusively, if it is in his hands, on his person, in his vehicle, or on his premises. This is an elemental inference based on common experience and all but universal probabilities. Thus, it is an ancient rule of inference or rebuttable presumption of fact that the recent and exclusive possession of the fruits of any crime warrants the inference of guilt, including, when material, knowledgeable possession. In the case of contraband, its possession is a crime per se, and hence the inference of guilt, that is, knowledgeable possession, is as strong as is the case, for instance, with stolen goods.

In the case at bar, the probabilities justifying the inference of knowledge are unusually impressive. The marijuana was in defendant’s hands when he accepted delivery. This is sufficient to permit the inference of knowledge subject to rebuttal by countervailing proof but there was much more in the case. The consignment was made in care of defendant. It is significant that defendant had on his person a check indorsed over as payable to the consignor. Defendant accepted delivery on the consignment which together with the check established that the transaction was one of which he had full awareness. Defendant claimed the packages as his before he was near enough to read or identify their markings. It could not be one of those rare instances where one may receive and accept a package unanticipated from an unknown sender.

For a residual issue, defendant requested a charge of the misdemeanor of criminal drug possession in the fourth degree, a crime which does not require any particular minimum quantity of the drug. Interestingly, defendant had previously and successfully moved to have the fourth count of the indictment, criminal possession in the fourth degree, dismissed. Possession in the first degree depended on the quantity of the drug involved. The weight of the contraband in the carton was not contradicted. Also, the nature of the case and its circumstances depended entirely on a commercial-like shipment of the large quantity. The case could stand or fall on that proof and no other. There was no basis in any of the evidence could the jury find the accused innocent of the higher crime and yet guilty of the misdemeanor which required no minimum quantity.

Henceforth, the order of conviction is affirmed. The New York surveillance and arrest did not depend necessarily in whole or in part on the purportedly illegal California police search. The motion to suppress was properly denied. There was independent and untainted cause, an airline employee’s information, for the California police to advise the New York police whose independent confirmatory observations resulted in defendant’s arrest. The proof of defendant’s physical possession, by consignment, delivery and acceptance, was warrant for the jury to infer his knowledge.

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